West Virginia Wrongful Death Lawyer

Who files a wrongful death claim in West Virginia?

The personal representative of the estate files the claim. That person is usually named in a will or appointed through the county commission, and acts on behalf of the family members entitled to share in the recovery.

Beneficiaries generally include a surviving spouse, children, parents and siblings, as well as people who were financially dependent on the person who died. A jury or the court may decide how the recovery is divided among them. The personal representative does not keep the money for themselves.

What compensation can a West Virginia family recover?

West Virginia allows damages for both emotional and financial losses. The law recognizes that the loss of a family member goes far beyond lost income.

• Sorrow, mental anguish and solace, which includes society, companionship, comfort, guidance and advice
• Lost income the person would have provided to the family
• Lost services, protection, care and assistance
• Medical expenses from the final injury
• Funeral and burial costs

If the death was caused by medical malpractice, West Virginia's caps on noneconomic damages generally apply. In other wrongful death cases, such as car crashes and workplace deaths, those malpractice caps do not apply.

How does shared fault affect a West Virginia wrongful death claim?

If the person who died shared some fault, the family's recovery is reduced by that share. If a jury finds the person was more than 50% at fault, the family recovers nothing.

Here is a worked example. A man is killed when his car is struck by a tractor-trailer at an intersection on a four-lane highway near Beckley. The family's damages are estimated at $1,500,000. The carrier argues the man pulled into the intersection too soon.

• If a jury finds the man 20% at fault, the family recovers $1,200,000.
• If a jury finds him 50% at fault, the family recovers $750,000.
• If a jury finds him 51% at fault, the family recovers nothing.

Because the line is so sharp, investigating signal timing, truck speed and sight lines can decide the case.

How long does a West Virginia family have to file?

Most West Virginia wrongful death claims must be filed within 2 years of the death. If the death resulted from medical malpractice, the pre-suit notice and screening certificate of merit requirements also apply, which add time before filing.

Opening the estate also takes time. Gathering records early helps too: the death certificate, police or incident reports, medical records, pay stubs and tax returns all support the damages claim. Families often find that letters, photos and stories from friends and coworkers help a jury understand who the person was and what the family lost. If there is no will, a family member usually needs to be appointed as administrator before the claim can be filed. Starting early helps protect the deadline. Families affected by a hospital error can learn more on our West Virginia medical malpractice page.

Can a workplace death lead to a wrongful death lawsuit in West Virginia?

Sometimes. Workers' compensation death benefits are usually the main remedy against an employer. But a family may bring a wrongful death claim against third parties, such as a contractor, equipment maker or another company's driver.

West Virginia also allows a deliberate intent claim against an employer in narrow situations, such as when the employer knowingly exposed a worker to a specific unsafe condition that violated safety rules. Mining, timber, gas and chemical work all carry serious risks. Our workplace and construction injuries page explains those options.

Is a criminal case different from a wrongful death claim?

Yes. A criminal case is brought by the state to punish a crime, such as DUI causing death. A wrongful death claim is a civil case brought on behalf of the family to recover compensation.

The civil case uses a lower standard of proof, so a family can succeed even if there is no conviction. A conviction can help prove the civil case, but families should not wait for the criminal case to end, because the 2-year civil deadline keeps running. Read more on our wrongful death page, and visit our West Virginia injury law hub for other rules. We offer a free case review, and there is no fee unless we win.